Tuesday, August 20, 2013
Do the Final Episodes of "Breaking Bad" Qualify As Trade Secrets?
Which led me to think: Do the plot lines over these final eight episodes qualify as "trade secrets"? Put another way, if one of the show's insiders - an actor, a writer, a key grip - published the final episodes' general plot narrative (online or in an interview), would the owners of the show - AMC - have a claim for trade secret misappropriation?
As many readers probably know, the test for determining a trade secret is relatively straightforward. An owner must show both: (a) that the information is economically valuable because of its secrecy; and (b) that it instituted reasonable security measures to protect the information.
So let's apply this to the final episodes of Breaking Bad and see if we can answer this question.
Economically Valuable Information
One argument weighing against trade secret status for the final episodes is that the information - that is the scripts and plot - are valuable as much for their novelty as for their secrecy. Secondarily, one could argue that the viewers would watch Breaking Bad even if the ending were either known or easily predictable. With this, I would disagree.
As to the first possible contention, every television show has some degree of originality, and as great as Breaking Bad is, it's not necessarily novel. After The Sopranos, it's hard to call a serial drama featuring a disaffected, criminal white male as "novel." In fact, it seems that virtually every new iteration of prestige television has such a protagonist (except, perhaps, for Orange Is the New Black).
So, since the series is not "novel," the argument for granting the last eight episodes trade secret status strengthens. That leads to the second possible argument against trade secret status: would people watch regardless of the ending? From my point of view, there are two key factors that indicate the story derives great value from its ability to hold its ending secret.
First, the show's true calling card from the beginning has been the parlor game begging viewers to speculate about the end. In other words, we know Walter White breaks bad from the first episode. Walt has cancer, meaning the show's lifespan is naturally limited. Add to the mix the compressed time frame over which the plot develops - two years' story time spread over six seasons - and the show has a frenetic, building pace that singularly drives viewers to speculate as to the ending. Since the focal point of the show always has been about the end, the plot that develops in the final season naturally has a high degree of intangible value.
Second, somewhat incredibly, Breaking Bad's viewership doubled from the last episode of Season Five to the first episode of the Season Six. This is staggering, if not ridiculous, for a serial drama that makes no sense if you jump in and start watching mid-stream. And it's due almost entirely to word-of-mouth. That is to say, those who've watched the show from the beginning have told their friends to get caught up because the end is near. Viewers of the show experience the show as much the day after it airs by reading the endless recaps and listening to insider podcasts, all of which contain a heavy undercurrent of how each episode builds towards the conclusion and what might happen in the last few episodes.
In all likelihood, 3 million new viewers have decided to watch over 50 hours of television in the past calendar year simply because the end is coming. The increased ratings for Breaking Bad likely have allowed the show to generate more advertising revenue (and possibly spin-offs for AMC), and this is mainly attributable to the fact the show is ending. Therefore, it seems logical that the narrative of the final episodes constitute some of the most valuable information about the show.
This is somewhat of an unknown, simply because I don't know exactly what the owners of Breaking Bad have done to protect the plot details. But, from what's available in the public domain, the secrecy steps appear to be somewhat legendary.
We know from recent interviews that one of the supporting characters - "Lydia" - received scripts for the final episodes that redacted all lines but hers. We also know the scripts created by the show's writers generally contain code names (they're not labeled, for instance, Breaking Bad), ostensibly to guard against the impact of some accidental disclosure. The show has contracts with vendors that are secret and that don't reference the show at all, such that many vendors apparently don't even know they are supplying goods or services to Breaking Bad. These may seem like extreme security measures, but it signifies the show believes its ending has great value.
We also know creator Vince Gilligan will not allow previews of the coming show. That is, at the end of, say, Episode 1, we don't see scenes from Episode 2. Nor does the show preview the show in commercial spots during the week. In fact, Gilligan only will do a very short (and very oblique, to put it mildly) teaser on AMC's recap show, Talking Bad, that shows a still photo from the coming episode. His commentary is so trite as to be meaningless.
So the answer to me is a clear "yes." The plot lines for the remaining episodes qualify as legal trade secrets. But like many trade secrets, their shelf life is limited. In six weeks, all of this information will be in the public domain, and the plots lose any legal protection (except for copyright law, which is sort of besides the point for this post).
Until the final episode has wrapped, any of the show's insiders who know how it will end would be well-advised to tread lightly.
(Many thanks to Eric Ostroff for inspiring this post, based on his July entry on WWE wrestling. Eric and I reach somewhat different conclusions, incidentally.)